London Borough of Hackney v Weintraub

Factual and Procedural Background

The case concerns whether a tenant in local authority accommodation who uses the property for limited purposes and does not sleep there can satisfy the "tenant condition" in section 81 of the Housing Act 1985 to exercise the right to buy, if the tenant only intends to recommence full use after exercising that right. The tenant, referred to as the Respondent, was granted a secure tenancy in 2002. After his spouse’s death in 2008, he continued to live there but arranged for guests to stay overnight due to nervousness about being alone. From 2017 onwards, he visited the property regularly for study but slept elsewhere, mainly at his daughter's house. He applied twice to exercise the right to buy, which the local authority (the Appellant) initially accepted but later rejected on the ground that the tenant did not occupy the property as his only or principal home. The local authority served a notice to quit and sought possession. The tenant sought a declaration of his right to buy, which was defended by the local authority. At first instance, the judge held the tenant did not satisfy the tenant condition and that the local authority was entitled to possession. On appeal, the appellate judge reversed this, holding the tenant condition was met and the tenant was entitled to exercise the right to buy. The local authority appealed further.

Legal Issues Presented

1. Whether a tenant who uses a local authority property for limited purposes and does not sleep there can satisfy the "tenant condition" under section 81 Housing Act 1985 for the right to buy.
2. Whether the tenant’s intention to return to the property as owner, rather than as tenant, after exercising the right to buy satisfies the tenant condition.
3. Whether the tenant’s occupancy of another property affects the determination of the principal home for the purposes of the tenant condition.

Arguments of the Parties

Appellant's Arguments

• The tenant condition requires actual occupation of the property as a tenant; the tenant must occupy the dwelling as tenant, not merely intend to return as owner.
• Allowing an intention to return as owner would be contrary to the purpose of Part V of the 1985 Act, which promotes occupation of local authority housing.
• The tenant’s intention to return was too remote and contingent on exercising the right to buy; he did not intend to return as tenant.
• Case law on temporary absences requires resumption of a previous pattern of occupation as tenant, which was absent here.
• Permitting the tenant’s interpretation would open the floodgates to tenants who have never lived in the property seeking to exercise the right to buy.

Respondent's Arguments

• The tenant is a contractual tenant and has formed a genuine intention to return to the property as his only or principal home.
• Occupation includes an intention to return, even if the tenant is currently absent or not sleeping there.
• The tenant’s intention to return as owner, not tenant, is sufficient to satisfy the tenant condition.
• Case law, including Dove, does not exclude tenants intending to return as owners from satisfying the tenant condition.
• The tenant’s use of the property for study and regular visits constitutes occupation as a home.
• The floodgates argument is unfounded because safeguards exist, including the requirement of genuine intention and objective evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Howe v Brent London Borough Council [2024] EWCA Civ 1444	Explanation of the right to buy process under the Housing Act 1985.	Used to clarify procedural and substantive context regarding secure tenancy and right to buy.
Islington London Borough Council v Boyle [2011] EWCA Civ 1450	Principles for determining whether a tenant occupies a dwelling as their home and principal home.	Discussed in relation to the two-stage enquiry: whether the property is a home and whether it is the only or principal home.
Havering London Borough Council v Dove & Anr [2017] EWCA Civ 156	Clarified the two-part question on occupation and principal home; addressed intention to return.	Applied to assess whether tenant’s occupation satisfied the tenant condition objectively.
Tickner v Hearn [1960] 1 WLR 1406	Establishes that a tenant’s intention to return must be a real hope coupled with practical possibility within a reasonable time.	Held that intention to return as owner, rather than tenant, could satisfy occupation if real hope and practical possibility exist.
Brown v Brash and Ambrose [1948] 2 KB 247	A tenant does not lose status automatically by absence if there is intention to return; question is one of fact and degree.	Supported the principle that intention and degree of absence must be objectively assessed.
Robert Thackray's Estates Ltd v Kaye (1989) 21 HLR 160	Considered occupation during temporary absence for repairs and intention to return.	Distinguished; works in present case were within tenant’s control and not too remote.
Basingstoke and Deane Borough Council v Paice (1995) 27HLR 433	Tenant condition has ambulatory effect; tenant status may fluctuate.	Used to explain timing and assessment of tenant condition at expiry of notice to quit.

Court's Reasoning and Analysis

The court analysed the statutory language of section 81 Housing Act 1985, concluding that the "tenant condition" requires the tenant to be an individual who occupies the dwelling as their only or principal home, but does not require that the tenant must intend to return in the capacity of tenant. The court rejected the local authority’s argument that occupation must be as tenant, noting that the section’s wording and heading are signposts rather than restrictive qualifiers. The court applied established principles from precedent cases, emphasizing an objective assessment of occupation and intention to return, including the requirement for a genuine and realistic intention supported by outward manifestations.

The court found that the tenant’s regular visits and use of the property for study, combined with a genuine intention to return as owner after exercising the right to buy, satisfied the tenant condition. The court distinguished the present case from cases where the tenant had abandoned the property or where the intention to return was too remote or contingent. It also rejected the floodgates argument, observing existing safeguards against abuse. The court agreed with the appellate judge that the tenant’s daughter’s home was also a home for the tenant but that the property remained the tenant’s principal home.

The court further clarified that the tenant condition need not be satisfied at all times but must be satisfied at relevant times, such as the expiry of a notice to quit. The court emphasized the importance of the tenant’s intention to return, assessed objectively, rather than the capacity in which the tenant intends to return.

Holding and Implications

DISMISSED

The appeal by the local authority is dismissed. The court held that a tenant who is temporarily absent from the property but has a genuine and realistic intention to return within a reasonable time may continue to occupy the property for the purposes of the tenant condition under section 81 Housing Act 1985. It is not necessary that the tenant intend to return in the capacity of tenant; an intention to return as owner following exercise of the right to buy suffices. This decision confirms that the tenant condition focuses on occupation and intention assessed objectively, not the legal capacity in which the tenant returns.

The direct effect is that the tenant retains the right to buy the property. The court did not establish a new precedent beyond clarifying the application of existing principles to the right to buy context. Safeguards remain to prevent abuse of the right to buy by those who have never occupied the property.